Baldwin v. Adams

Filing 21

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING MOTION FOR EVIDENTIARY HEARING AS MOOT. Signed by Judge Claudia Wilken on 8/29/2012. (ndr, COURT STAFF) (Filed on 8/29/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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4

JAMES LAMONT BALDWIN,

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Petitioner,

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ORDER GRANTING
PETITION FOR WRIT
OF HABEAS CORPUS
AND DENYING MOTION
FOR EVIDENTIARY
HEARING AS MOOT

v.

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No. C 09-4749 CW

DERRAL ADAMS,

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9

Respondent.
________________________________/

United States District Court
For the Northern District of California

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On October 6, 2009, Petitioner James Lamont Baldwin, with the

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assistance of an attorney, filed this petition for a writ of

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habeas corpus to vacate his conviction after a trial by jury.

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January 11, 2011, Respondent filed an answer.

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the Court granted Petitioner's motion for appointment of counsel.

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On July 16, 2011, Petitioner, represented by counsel, filed a

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traverse and moves for an evidentiary hearing to be held in the

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event the petition is not granted.

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On

On March 25, 2011,

Having considered all the papers filed by the parties and the

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state court record, the Court grants the petition and denies the

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motion for an evidentiary hearing as moot.

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BACKGROUND

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On July 22, 2004, a jury found Petitioner guilty of first

24

degree murder and being a felon in possession of a firearm.

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jury also found true an enhancement allegation that Petitioner had

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discharged a firearm causing great bodily injury.

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waived a jury trial on a prior prison term allegation.

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found the allegation true, but later granted the prosecutor's

The

Petitioner
The court

1

motion to strike it.

2

Petitioner's motion for a new trial and sentenced him to a prison

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term of twenty-five years to life for first degree murder and a

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consecutive term of twenty-five years to life for the firearm use.

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On August 27, 2004, the court denied

On October 5, 2007, the California court of appeal affirmed

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Petitioner's conviction.

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App. filed Oct. 5, 2007) (unpublished).

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California Supreme Court issued a one-sentence denial of review.

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On May 9, 2009, Petitioner filed a petition for a writ of habeas

People v. Baldwin, No. A107665 (Cal.

United States District Court
For the Northern District of California

10

corpus in the California Supreme Court.

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On January 23, 2008, the

Court issued a one-sentence denial.

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13

On August 29, 2009, the

The following is a summary of facts taken from the findings
of the state court of appeal and from the evidentiary record.

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On July 1, 2002, the Oakland police found the body of Terrill

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Zachery lying between two parked cars on 91st Avenue between A and

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B Streets.

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head and three times to the back of the lower torso.

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weapon was a .40 caliber Glock pistol.

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casings found at the scene came from a single gun.

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He had been shot five times, twice to the back of the
The murder

All nine .40 caliber shell

Sergeant Brian Medeiros, of the Oakland Police Department's

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homicide unit, was assigned to the case.

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this case until September 10, 2002, when Wesley Tucker was

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arrested standing near a car containing illegal drugs.

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being returned to custody, Tucker offered to provide information

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about Zachery's murder.

26

person who shot Zachery and said that Erik Gaines had driven

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Petitioner to the scene of the murder.

There were no leads in

To avoid

Tucker identified Petitioner as the

28
2

Tucker was released

1

without being charged with a crime.

2

212.

3

Reporter's Transcript (RT) at

After obtaining this information from Tucker, Sergeant

4

Medeiros decided to conduct a search of the home of Mocha

5

Aldridge, Petitioner's girlfriend, where Petitioner resided.

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Sergeant Medeiros explained the search as a parole search, without

7

mentioning the murder, so as not to alert Petitioner that he was

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the target of a murder investigation.

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September 20, 2002.

The search took place on

The officers found a small amount of

United States District Court
For the Northern District of California

10

marijuana in a shoe box and a dreadlock wig.

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Petitioner for marijuana possession and his parole was revoked.

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They arrested

Because Tucker had told Sergeant Medeiros that Gaines had

13

been with Petitioner on the night of the shooting, Sergeant

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Medeiros put out a bulletin within the Oakland Police Department

15

that he wanted to talk to Gaines as a witness to the Zachery

16

murder.

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brought him to the police department on an outstanding warrant.

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After Sergeant Medeiros asked Gaines what he knew about Zachery's

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murder, Gaines said that he would tell Sergeant Medeiros what he

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knew about the murder, but he would not sign papers or allow his

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statement to be recorded because he was afraid of Petitioner's

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family.

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On October 22, 2002, an officer located Gaines and

Sergeant Medeiros surreptitiously taped the interview.

Gaines said that, shortly before the shooting, he and

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Petitioner were cruising the neighborhood in Gaines' car.

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passed Zachery on 91st Avenue and A Street and Petitioner said,

26

"[T]hat's that [person who] killed T."

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Randy "Bone" Hicks, and Jermaine Fudge and Reggie Brown were

28

standing nearby.

They

Zachery was talking to

Petitioner, who was wearing a black hoodie and
3

1

jeans, told Gaines to drive around the block and let him out.

2

Petitioner got out of the car, he put on a braided wig.

3

also noticed Petitioner had the .40 caliber pistol that he

4

regularly carried.

5

91st Avenue.

6

Hicks and Fudge running and picked them up in his car.

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him that Petitioner walked up to Zachery with his gun out and,

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when Zachery started to run, Petitioner shot him in the back

9

several times.

As

Gaines

Gaines drove away, but then headed back to

When he got to 91st Avenue and D Street, he saw
Hicks told

Zachery fell and Petitioner stood over him and

United States District Court
For the Northern District of California

10

"let him have it."

11

because he had come face to face with Petitioner right after the

12

shooting, and that Fudge and Brown were also afraid that

13

Petitioner would "try to kill them."

14

Gaines said that Hicks told him he was scared

Gaines saw Petitioner about an hour and a half later at 90th

15

Avenue and East 14th Street.

16

Gaines complained to Petitioner that he had made his car "hot" by

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shooting Zachery.

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Gaines' car to the murder.

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because Zachery had killed "Little T" and it was "murder for

20

murder."

Petitioner had changed his clothes.

Petitioner said that no one would connect
Petitioner said he killed Zachery

21

On November 2, 2002, the gun that killed Zachery was

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retrieved by Leonard Montalvo, a security guard at a low income

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housing project.

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car on South Elmhurst at D Street in Oakland.

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male saw them, ran from them and climbed a fence to get away.

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he was climbing the fence, his jacket got caught in the fence and

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came off as he fell to the other side.

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and his partner found a Glock .40 caliber firearm, which they

Montalvo and his partner were on patrol in their

4

An African American
As

Under the jacket, Montalvo

1

turned over to the Oakland Police Department.

2

Montalvo described the person who dropped the gun as a tall, lanky

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African American male of about nineteen years of age.1

RT 659-665.

RT 665.

4

Murder charges against Petitioner were filed in April 2003.

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Before Gaines testified at Petitioner's preliminary hearing,

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the deputy district attorney told him his statement had been taped

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and Gaines expressed concern about this.

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concern about who would be in the courtroom at the preliminary

9

hearing.

He also expressed

The deputy district attorney told him that Petitioner

United States District Court
For the Northern District of California

10

and several members of his family were present, and Gaines said he

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was afraid to testify.

12

preliminary hearing, he refused to answer questions.

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ordered him to reply, and he testified that, at the interview, he

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told the police what he thought they wanted to hear so that he

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could go home.

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inconsistent statement.

17
18

When Gaines took the stand at the
The court

Gaines' taped interview was read as a prior

A few months before Petitioner's trial, Hicks was killed.
I. Prosecutor's Case

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A. Wesley Tucker's Testimony

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At Petitioner's trial, Tucker testified as follows.

Prior to

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the murder, Tucker and Petitioner had been friends for

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approximately ten years.

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Tucker and his four-year-old son were leaving a baseball game at

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the Coliseum when Petitioner called and asked Tucker to pick him

On July 1, 2002, the day of the murder,

25
1

26
27
28

Petitioner was described by Gaines, in his interview with
police, as approximately six feet, four inches tall and weighing
approximately 220 to 230 pounds. Ex. 3 at 3:24-30. Petitioner
was born on July 18, 1978, and he was almost twenty-four years old
at the time of the crime. 2 CT 319, Probation Report.
5

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up at the house of his girlfriend, Mocha Aldridge, who lived on

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100th Avenue.

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Phil Jones, and his friend Aaron Thigpin.

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Petitioner.

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then he and the others went to a liquor store near 90th Avenue and

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East 14th Street.

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Tucker's cell phone to make several calls.

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Petitioner told someone to meet him at 90th Street and bring "his

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40," meaning his .40 caliber pistol.

Tucker agreed, but first picked up his brother,
Tucker then picked up

Tucker dropped his son off at his mother's house,

While riding in the car, Petitioner borrowed
In one call,

Telephone company evidence

United States District Court
For the Northern District of California

10

showed that two calls were made that night from Tucker's cell

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phone to Aldridge's home phone number.

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9:16 p.m. and lasted two minutes; the second call was made at

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11:59 p.m. and lasted one minute.

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not indicate if the calls were answered by a person or by an

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answering machine.

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The first call was made at

RT 1189; 1231.

The records did

RT 1231.

Petitioner and Jones got into an argument, during which a

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white Nissan Altima drove up with Tynesha Ross, another of

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Petitioner's girlfriends, in the back seat.

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to the car, leaned in and retrieved a gun.

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he turned around, walked over to Jones and punched him in the

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face.

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yelled at him to come back and fight.

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Tucker tried to calm Petitioner.

Petitioner went over
After a few seconds,

Jones fled into a nearby liquor store, and Petitioner

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including Gaines, who urged him on.

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However, others arrived,

to go for a drive with Gaines.

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Eventually Petitioner decided

Later that day, Tucker and Thigpin were standing at the

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corner of 90th Avenue and East 14th Street, when they heard a

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series of "pops" and saw Petitioner running up the street saying
6

1

someone was shooting at him.

2

and told him to take him to his brother Kenny's house on 71st

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Avenue.

4

Zachery because Zachery had killed Petitioner's friend, "Little

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T."

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and, when he saw Zachery, he got out of the car, ran up to Zachery

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and shot him.

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While he was driving with Tucker, Petitioner removed a .40 caliber

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pistol from the pocket of his black hoodie.

Petitioner jumped into Tucker's car

In the car, Petitioner told Tucker that he had "made"

Petitioner told Tucker that he had been riding in Gaines' car

The only person who witnessed this was Hicks.

When they reached

United States District Court
For the Northern District of California

10

Petitioner's brother's house, Petitioner went inside and changed

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into a Pendleton jacket and a Raiders hat.

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Petitioner to a nearby gas station where Petitioner drove off with

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another friend.

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Then, Tucker drove

Tucker then drove to 91st Avenue to see if Petitioner's story

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was true.

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on the ground, that the police had blocked off the crime scene and

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that Petitioner, Thigpen, Fudge and Brown were standing in the

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crowd of onlookers.

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When he arrived, he saw that Zachery's body was lying

After murder charges were filed against Petitioner and Tucker

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had given his statement to the police, a person who was a friend

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of both Tucker and Petitioner advised Tucker to leave town because

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he was a witness to the murder.

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probation for a prior drug felony in Alameda County, he moved to

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Ohio because of the friend's advice.

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arrested on a drug charge in Ohio and returned to California for

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violating his probation.

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California, someone told Tucker's friend, who was staying at

Even though Tucker was on

Eventually, Tucker was

After Tucker was brought back to

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7

1

Tucker's daughter's house, that Tucker better not come to court to

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testify.

3

B. Erik Gaines' Statement

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At Petitioner's trial, Gaines invoked his Fifth Amendment

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privilege not to testify.

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preliminary hearing testimony read to the jury, which included his

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taped statement to Sergeant Medeiros.

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limine motion to exclude the entirety of Gaines' statement on

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various grounds, but did not move particularly to exclude, on

The prosecutor moved to have Gaines'

Defense counsel made an in

United States District Court
For the Northern District of California

10

grounds of double hearsay, the part of Gaines' statement in which

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he reported that Hicks had told him he was afraid Petitioner would

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kill him because he witnessed Petitioner kill Zachery.

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allowed Gaines' entire statement to be read to the jury.

The judge

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C. Petitioner's Phone Calls from Jail

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While he was in jail for the marijuana charge and parole

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violation, Petitioner had several telephone conversations with

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Aldridge.

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telephone calls were taped.

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became angry at Aldridge and used pejorative language toward her.

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Petitioner told her that someone was "snitching," that he was

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being investigated by homicide officers and that he and Aldridge

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should leave town.

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too" and the authorities would offer her "low term 25."

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point, Aldridge connected Petitioner to an unidentified third

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party and Petitioner instructed this person to "handle that shit,"

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to "check your surroundings," and not to let anyone send him that

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"bizat," because "there's somebody in our circle snitching."

A large sign over the phone warned inmates that
During two taped calls, Petitioner

He also said that she could "have been gone

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8

At one

1

The prosecutor requested that the two taped calls, in their

2

entirety, be played for the jury.

3

suppress the tapes on several grounds, including California

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Evidence Code section 352, which provides for the exclusion of

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evidence if its probative value is outweighed by its prejudice.

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After a hearing on the motion, the trial court admitted the entire

7

tape of the first telephone conversation.

8

portions of the second conversation, mostly on grounds of

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redundancy.

United States District Court
For the Northern District of California

10

Defense counsel moved to

The court redacted

RT 2-69.

II. Defense Case

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A. Jermaine Fudge's Testimony

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Fudge testified that, on the night of July 1, 2002, he was

13

hanging out with Hicks on 91st Avenue and saw Zachery walking down

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91st Avenue, followed by another person wearing a black hoodie.

15

Fudge said the person was shorter and thinner than Petitioner.

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saw the person in the black hoodie walk behind a van and start

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shooting.

18

Hicks were picked up by Gaines and they discussed why Zachery had

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been shot, but Hicks never said he saw the killer.

Then he and everyone else ran away.

He

Later, he and

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B. Aaron Thigpen's Testimony

21

Thigpen also testified in Petitioner's defense.

He stated

22

that he, Tucker and Jones were driving around on the night of July

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1, 2002.

24

and he did not see Petitioner until later that week.

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evening, while he was hanging out with Tucker around a liquor

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store at 90th Avenue, they heard what sounded like firecrackers.

27

He walked up the street and came to the crime scene.

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testified that Tucker and Petitioner had been good friends, but

He stated that Petitioner was never in the car with them

9

Later that

Thigpen

1

that they had had a falling out.

2

not like Petitioner, and wanted to "pay him back."

Tucker told Thigpen that he did

3

C. Germain Tapia's Testimony

4

Germain Tapia lived on 91st Avenue between A and B Streets.

5

He was located by the defense and subpoenaed to testify near the

6

end of the trial.

7

2002, he was working on a car at 91st Avenue and A Street.

8

11:00 p.m., he saw a person in a blue hoodie walk by.

9

not see his face, but he was shorter and skinnier than Petitioner

He testified that, on the night of July 1,

United States District Court
For the Northern District of California

10

and walked with a limp.

11

approximately ten shots.

12

At

Tapia could

inside his house.

A few minutes later Tapia heard
He saw two men run past, and then he ran

13

D. Alibi Defense

14

Aldridge testified that she and Petitioner had arranged to go

15

to the home of Petitioner's mother, Deborah Baldwin, in Modesto on

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June 30, 2002, the day before the murder.

17

arrived in Oakland in a rented car to pick them up, but Petitioner

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was out with friends and could not be located.

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Modesto with Petitioner's family, and returned later that evening

20

in the rented car to get Petitioner.

21

that evening and stayed through the July 4th holiday.

22

Petitioner's mother

Aldridge drove to

They arrived in Modesto late

Cecilia Franklin, a good friend of Deborah Baldwin's,

23

testified that she had seen Petitioner at Deborah Baldwin's house

24

on June 30th and July 1st.

25

Deborah Baldwin's, testified that she recalled seeing Petitioner

26

at his mother's house the evening of July 1st.

27
28

Denise Pitts, another friend of

Deborah Baldwin testified that she rented a car from
Enterprise Rent-A-Car in Modesto on June 30th, and drove to
10

1

Oakland, arriving at noon.

2

drove back to Modesto with Aldridge.

3

Baldwin let Aldridge take the car back to Oakland to pick up

4

Petitioner.

5

they stayed at Deborah Baldwin's house until the evening of July

6

4th.

7

had been barred from renting from Enterprise since 2001 because of

8

an outstanding debt and that Franklin had rented the car for her

9

on June 28th.

Petitioner could not be found, so she
Later that day, Deborah

Aldridge returned with Petitioner late that night and

On cross-examination, Deborah Baldwin acknowledged that she

United States District Court
For the Northern District of California

10

Petitioner testified that he and Aldridge drove to his

11

mother's house in a rented car, arriving in Modesto at 8:30 p.m.

12

on June 30th, 2002, and that they stayed there until the evening

13

of July 4th.

14

conversations with Aldridge, he stated that he did not believe he

15

was being investigated for murder, that his reference to "low term

16

25" in the call was not to the twenty-five-years-to-life sentence

17

for murder, but was a reference to a twenty-five month term for a

18

drug offense that Aldridge would have to serve if she was

19

convicted and got the low term of three years for selling

20

marijuana.

21

was in regard to his marijuana stash.

22

party on the phone was "Boo" or "Booby," that he and Boo had

23

agreed to become partners in a record business, and that his

24

directions to Boo to "handle that shit" and "check your

25

surroundings" referred to record business arrangements.

26

that his reference to a "b'zat" was not to a gun, but to cash that

27

Boo owed him; he was telling Boo not to send the cash to Aldridge

28

because he was concerned that she would spend it.

When Petitioner was asked about his taped jail phone

He also explained that his reference to "snitching"

11

He stated that the third

He stated

1

Petitioner denied shooting Zachery and testified that he had

2

no ill will towards him.

3

falling out sometime before July 2002 because he had an affair

4

with the mother of one of Tucker's children and had a fight with

5

Tucker's brother, Jones.

6

III. Prosecutor's Rebuttal

7

He stated that he and Tucker had a

Jason Tardiff, Enterprise's custodian of records, testified

8

that a silver Pontiac Grand Am had been rented to Franklin on July

9

2, 2002 at 5:44 p.m., the day after the murder.

The car was

United States District Court
For the Northern District of California

10

rented through August 12, 2002.

11

Camry on June 19, 2002, and returned it on June 24, 2002.

12

prosecutor asked Tardiff whether he had asked Tardiff to check all

13

cars rented at all times in June and July 2002 by Franklin.

14

1152.

15

explaining that he had only been given two contract numbers to

16

check.

17

that he had checked every car Franklin had rented, the one on June

18

19th and the one on July 2nd, and that she had rented nothing in

19

between.

The

RT

Tardiff responded in the negative to this question,

RT 1152.

In his closing argument, the prosecutor stated

RT 1235.

20
21

Franklin had also rented a Toyota

LEGAL STANDARD
A federal court may entertain a habeas petition from a state

22

prisoner "only on the ground that he is in custody in violation of

23

the Constitution or laws or treaties of the United States."

24

U.S.C. § 2254(a).

25

Penalty Act (AEDPA), a district court may not grant a petition

26

challenging a state conviction or sentence on the basis of a claim

27

that was reviewed on the merits in state court unless the state

28

court’s adjudication of the claim: "(1) resulted in a decision

28

Under the Antiterrorism and Effective Death

12

1

that was contrary to, or involved an unreasonable application of,

2

clearly established federal law, as determined by the Supreme

3

Court of the United States; or (2) resulted in a decision that was

4

based on an unreasonable determination of the facts in light of

5

the evidence presented in the State court proceeding."

6

§ 2254(d).

7

law if it fails to apply the correct controlling authority, or if

8

it applies the controlling authority to a case involving facts

9

materially indistinguishable from those in a controlling case, but

28 U.S.C.

A decision is contrary to clearly established federal

United States District Court
For the Northern District of California

10

nonetheless reaches a different result.

11

1062, 1067 (9th Cir. 2003), overruled on other grounds by Lockyer

12

v. Andrade, 538 U.S. 63 (2003).

13

Clark v. Murphy, 331 F.3d

The only definitive source of clearly established federal law

14

under 28 U.S.C. § 2254(d) is the holdings of the Supreme Court as

15

of the time of the relevant state court decision.

16

Taylor, 529 U.S. 362, 412 (2000).

17

may no longer be overturned on habeas review simply because of a

18

conflict with circuit-based law, circuit decisions may still be

19

relevant as persuasive authority to determine whether a particular

20

state court holding is an "unreasonable application" of Supreme

21

Court precedent or to assess what law is "clearly established."

22

Clark, 331 F.3d at 1070-71.

23

Williams v.

Although a state court decision

To determine whether the state court’s decision is contrary

24

to, or involved an unreasonable application of, clearly

25

established law, a federal court looks to the decision of the

26

highest state court that addressed the merits of a petitioner’s

27

claim in a reasoned decision.

28

669 n.7 (9th Cir. 2000).

LaJoie v. Thompson, 217 F.3d 663,

If the state court only considered state
13

1

law, the federal court must ask whether state law, as explained by

2

the state court, is "contrary to" clearly established governing

3

federal law.

4

2001).

5

Lockhart v. Terhune, 250 F.3d 1223, 1230 (9th Cir.

The standard of review under AEDPA is somewhat different

6

where the state court gives no reasoned explanation of its

7

decision on a petitioner's federal claim.

8

such a decision, a federal court should conduct “an independent

9

review of the record” to determine whether the state court’s

When confronted with

United States District Court
For the Northern District of California

10

decision was an objectively unreasonable application of clearly

11

established federal law.

12

1198 (9th Cir. 2006); Himes v. Thompson, 336 F.3d 848, 853 (9th

13

Cir. 2003).

Plascencia v. Alameida, 467 F.3d 1190,

14

Even if the state court's ruling is contrary to or an

15

unreasonable application of Supreme Court precedent, that error

16

justifies habeas relief only if the error resulted in "actual

17

prejudice."

18

Thus, habeas relief is granted only if the state court's error had

19

a "substantial and injurious effect or influence in determining

20

the jury's verdict."

21
22

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

Id.
DISCUSSION

In his direct appeal in state court, Petitioner asserted the

23

following claims: (1) the prosecutor engaged in numerous instances

24

of misconduct, violating his due process rights to a fair trial;

25

(2) the trial court abused its discretion under California

26

Evidence Code section 352 by failing to redact further the

27

recorded telephone calls between Petitioner and Aldridge,

28
14

1

violating his due process rights to a fair trial;2 (3) the trial

2

court erred by admitting evidence of threats and violence against

3

witnesses that were not made or instigated by Petitioner; (4) the

4

trial court failed adequately to investigate juror misconduct; and

5

(5) the cumulative effect of these errors deprived Petitioner of

6

due process and a fair trial.

7

counsel was ineffective.

8

relief in state court.

9

reasoned decision on these claims was the state court of appeal on

Petitioner also argued that defense

In addition, Petitioner sought habeas

The only state court that issued a

United States District Court
For the Northern District of California

10

Petitioner's direct appeal.

11

I. Prosecutorial Misconduct and Ineffective Assistance of Counsel

12

A. Legal Standard

13

A defendant's due process rights are violated when a

14

prosecutor's misconduct renders a trial "fundamentally unfair."

15

Darden v. Wainwright, 477 U.S. 168, 181 (1986).

16

first issue is whether the prosecutor’s conduct was improper; if

17

so, the next question is whether such conduct infected the trial

18

with unfairness.

19

2005).

Under Darden, the

Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir.

20

Even if the prosecutor's actions constituted misconduct, when

21

a curative instruction is issued, the court presumes that the jury

22

has disregarded the misconduct and that no due process violation

23

occurred.

Greer v. Miller, 483 U.S. 756, 766 n.8 (1987); Darden,

24
2

25
26
27
28

In his traverse, Petitioner concedes this claim due to
Alberni v. McDaniel, 458 F.3d 860, 865 (9th Cir. 2006), which held
that AEDPA bars federal courts from entertaining such claims
because "the Supreme Court has never expressly held that it
violates due process to admit" propensity evidence, no matter how
improper the use to which it is put. Traverse at 67. The Court,
therefore, does not address this claim.
15

1

477 U.S. at 181-82 (the Court condemned egregious, inflammatory

2

comments by the prosecutor but held that the trial was fair

3

because curative instructions were given by the trial judge).

4

Other factors which the court may take into account in

5

determining whether prosecutorial misconduct rises to the level of

6

a due process violation are (1) the weight of the evidence of

7

guilt, see United States v. Young, 470 U.S. 1, 19 (1985);

8

(2) whether the misconduct was isolated or part of an ongoing

9

pattern, see Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987);

United States District Court
For the Northern District of California

10

(3) whether the misconduct related to a critical part of the case,

11

see Giglio v. United States, 405 U.S. 150, 154 (1972); and

12

(4) whether the prosecutor's comment misstated or manipulated the

13

evidence, see Darden, 477 U.S. at 182.

14

To establish ineffective assistance of counsel, a petitioner

15

must show that (1) counsel made errors so serious that counsel was

16

not functioning as the counsel guaranteed a defendant by the Sixth

17

Amendment, and (2) the deficient performance prejudiced the

18

defense such that "there is a reasonable probability that, but for

19

counsel's unprofessional errors, the result of the proceeding

20

would have been different."

21

668, 694 (1984).

22

sufficient to undermine confidence in the outcome.

23

Hatcher, 231 F.3d 640, 644 (9th Cir. 2000) (citing Strickland, 466

24

U.S. at 687).

25

Strickland v. Washington, 466 U.S.

A reasonable probability is a probability
Loveland v.

A difference of opinion as to trial tactics does not

26

constitute denial of effective assistance, United States v. Mayo,

27

646 F.2d 369, 375 (9th Cir. 1981), and tactical decisions are not

28

ineffective assistance simply because in retrospect better tactics
16

1

are known to have been available, Bashor v. Risley, 730 F.2d 1228,

2

1241 (9th Cir. 1984).

3

deference when: (1) counsel in fact bases trial conduct on

4

strategic considerations; (2) counsel makes an informed decision

5

based upon investigation; and (3) the decision appears reasonable

6

under the circumstances.

7

(9th Cir. 1994).

8

automatically immunize an attorney's performance from Sixth

9

Amendment challenges.

Tactical decisions of trial counsel deserve

Sanders v. Ratelle, 21 F.3d 1446, 1456

A label of "trial strategy" does not

United States v. Span, 75 F.3d 1383, 1389-

United States District Court
For the Northern District of California

10

90 (9th Cir. 1996).

11

of the law, resulting in the omission of his client's only

12

defense, is not a strategic decision and amounts to ineffective

13

assistance of counsel.

14

433 F.3d 1148, 1161-62 (9th Cir. 2006).

15

For example, an attorney's misunderstanding

Id.; see also, United States v. Alferahin,

Counsel's decision not to request a limiting instruction on

16

damaging evidence is within the acceptable range of strategic

17

tactics employed to avoid drawing attention to damaging testimony.

18

Musladin v. Lamarque, 555 F.3d 830, 845-46 (9th Cir. 2009).

19

However, once the prosecutor draws the jury's attention to the

20

damaging testimony in closing argument and asks jurors to draw the

21

inference that a limiting instruction would have forbidden, the

22

decision not to request a limiting instruction will not be

23

shielded as within the range of reasonable strategy.

Id. at 847.

24

B. Analysis

25

Although the state appellate court ruled that the majority of

26

Petitioner's prosecutorial misconduct claims were waived because

27

defense counsel did not object, it addressed their merits to

28

determine whether counsel's failure to object constituted
17

1

ineffective assistance of counsel, stating that "if the

2

[prosecutor's] challenged statement or argument was not misconduct

3

then, of course, it would not be outside the range of competence

4

for counsel to fail to object."

5

slip op. at 10 (Cal. App. October 5, 2007).

6

People v. Baldwin, No. A107665,

In his federal petition, Petitioner repeats the claims of
prosecutorial misconduct and ineffective assistance of counsel.

8

Respondent likewise argues here that most of the prosecutorial

9

misconduct claims are forfeited because defense counsel failed to

10
United States District Court
For the Northern District of California

7

object to them at trial and the contemporaneous objection rule is

11

an adequate and independent ground constituting a procedural bar

12

to consideration of the issue.

13

the prosecutorial misconduct claims because Petitioner may show

14

cause for a procedural default by establishing constitutionally

15

ineffective assistance of counsel and prejudice by demonstrating a

16

reasonable probability that, but for counsel's unprofessional

17

conduct, the result of the proceedings would have been different.

18

Murray v. Carrier, 477 U.S. 478, 488 (1986); Vansickel v. White,

19

166 F.3d 953, 958 (9th Cir. 1999).

20

result of the proceedings was fundamentally unfair or unreliable.

21

Id.

22

prosecutorial misconduct claims simultaneously with the

23

ineffective assistance of counsel claims because, if the

24

prosecutor did not commit misconduct, counsel's failure to object

25

would not constitute ineffective assistance.

26
27
28

This Court addresses the merits of

Petitioner must show that the

Like the state court, this Court will address the

1. Appeal to Passion and Prejudice of Jury
Petitioner argues that the prosecutor improperly argued that
the jury should convict him because his conviction would protect
18

1

the community by deterring future law-breaking and preserving

2

civil order.

3

In his rebuttal closing argument, the prosecutor stated,

4

"With this kind of evidence, if you find this defendant not

5

guilty, I mean, it's almost like it's open season in East Oakland.

6

This is what it is."

7

The last words the prosecutor said in his rebuttal were:

8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

RT 1249.

Defense counsel did not object.

It's not a crusade against bad guys in Oakland. It
is this case -- this is homicide in this case in
this area, and this is the way it happens. If you
permit him to get away with this, you know, it's
essentially lawlessness out there. Don't subject
the citizens. Don't send that message out there.
Treat this case individually. This is our facts on
this defendant. Understand the context.
RT 1249-50.

Defense counsel did not object to this either.

A prosecutor may not urge the jurors to convict in order to
protect community values, preserve civil order, or deter future
law-breaking.

United States v. Sanchez, 659 F.3d 1252, 1256 (9th

Cir. 2011); United States v. Weatherspoon, 410 F.3d 1142, 1149
(9th Cir. 2005).

The vice in such an argument is that it

increases the possibility that the defendant will be convicted for
reasons unrelated to his own guilt.

Sanchez, 659 F.3d at 1257

(prosecutor committed misconduct in suggesting to jury that
accepting defendant's duress defense would be tantamount to
sending a memo to all drug couriers to use the duress defense and
would lead to increased drug trafficking).

In Weatherspoon, the

prosecutor repeatedly stated in his closing argument that finding
the defendant guilty of being a felon in possession of a weapon
would protect individuals in the community.
The court stated:
19

410 F.3d at 1149.

That entire line of argument . . . was improper. We
have consistently cautioned against prosecutorial
statements designed to appeal to the passions, fears
and vulnerabilities of the jury. . . . Jurors may be
persuaded by such appeals to believe that, by
convicting a defendant, they will assist in the
solution of some pressing social problem. The
amelioration of society's woes is far too heavy a
burden for the individual criminal defendant to
bear.

1
2
3
4
5
6
7

Id.
The state appellate court found that the prosecutor's remarks

8

did not constitute misconduct.

9

prosecutor himself undermined the prejudicial effect of these

The court reasoned that "the

United States District Court
For the Northern District of California

10

remarks by cautioning the jury that, 'It's not a crusade' and that

11

it must '[t]reat this case individually.'"

12

A107665, slip op. at 22.

13

would not have incited the jurors' passions because "the

14

prosecutor's brief references to lawlessness and the need to send

15

a message to the citizens of the community were preceded by

16

lengthy and detailed argument focused entirely upon the evidence."

17

Id. at 22-23.

18

misconduct, the court found that counsel's failure to object was

19

not ineffective assistance.

20
21
22
23
24

People v. Baldwin, No.

The court also reasoned that the remarks

Because the prosecutor's remarks were not

Id. at 22.

Respondent relies on Donnelly v. DeChristoforo, 416 U.S. 637,
646-47 (1974), where the Court stated,
A court should not lightly infer that a prosecutor
intends an ambiguous remark to have its most
damaging meaning or that a jury, sitting through a
lengthy exhortation, will draw that meaning from the
plethora of less damaging interpretations.

25
26
27
28

However, DeChristoforo is inapplicable here because the meaning of
the prosecutor's remarks was clear and unambiguous.

The

prosecutor's statements were improper and constituted misconduct.
20

1

Defense counsel declares that he did not object because he

2

viewed "this broad-based argument as generic rhetoric, and not

3

particularly inflammatory.

4

the implications of the jury's decision.

5

objectionable than other things the prosecutor said."

6

Petitioner's Ex. B, Declaration of Theodore Berry, trial counsel,

7

at ¶ 16.

8

made a tactical decision not to object.

9

counsel's statement shows that he failed to recognize the

He was not arguing the evidence, just
It certainly was less

Respondent argues that counsel's statement shows that he
To the contrary, defense

United States District Court
For the Northern District of California

10

illegality and prejudicial effect of the prosecutor's statement.

11

Furthermore, the prosecutor's improper statements were made

12

at the end of his rebuttal and so they were the last words that

13

the jury heard.

14

1996) (prejudicial evidence at end of trial without a limiting

15

instruction magnifies the prejudicial effect because it is

16

freshest in the mind of the jury), superseded by statute on other

17

grounds as stated in Van Tran v. Lindsey, 212 F.3d 1143 (9th Cir.

18

2000).

19

passions of the jury were likely to have a substantial prejudicial

20

effect, defense counsel's failure to object constituted deficient

21

performance.

22

misconduct and ineffective assistance of counsel.

23
24

See Crotts v. Smith, 73 F.3d 861, 867 (9th Cir.

Because the prosecutor's statements appealing to the

These facts support a finding of prosecutorial

2. Threats and Violence Against Witnesses
Petitioner contends that the court erred by admitting

25

evidence of threats and violence against witnesses.

26

argues that the prosecutor committed misconduct by suggesting,

27

despite the lack of evidence to support such a conclusion, that

28

Petitioner was responsible for the threats and violence.
21

He also

He

1

claims that defense counsel was ineffective in failing to object

2

and request curative instructions.

3

Under California law, absent evidence that the defendant made

4

or authorized threats to witnesses, the evidence of such threats

5

is inadmissible to prove consciousness of guilt.

6

57 Cal. 2d 538, 566 (1962).

7

evidence that a witness is afraid to testify because he or she

8

fears retaliation is admissible as relevant to the credibility of

9

that witness.

People v. Terry,

However, California cases hold that

People v. Burgener, 29 Cal. 4th 833, 869 (2003).

United States District Court
For the Northern District of California

10

For this purpose, it is not necessary to link the threats to the

11

defendant.

12

(1994).

13

prejudicial because it appeals to the jury's sympathies, arouses

14

its sense of horror, provokes its instinct to punish, or otherwise

15

may cause a jury to base its decision on something other than the

16

evidence.

17

1996).

18

probative value towards credibility, unless the evidence bears

19

directly on a specific credibility issue regarding the threatened

20

witness.

21

a witness' inconsistent statements, delays in testifying, or even

22

courtroom demeanor indicating intimidation."

23
24

People v. Gutierrez, 23 Cal. App. 4th 1576, 1588

However, evidence of threats to witnesses can be highly

United States v. Thomas, 86 F.3d 647, 654 (7th Cir.

Furthermore, "threat evidence has extremely limited

For example, threat evidence can be relevant to explain

Id.

a. Threats Against Wesley Tucker
Petitioner points out that Tucker was permitted to testify to

25

threats that had been made by someone he did not identify.

26

prosecutor asked Tucker whether he was concerned that something

27

might happen to him in jail or that members of Petitioner's family

28

would hurt him or his family, and Tucker replied, "Yes."
22

The

RT 211-

1

12.

2

instigated any threats.

3

limiting instruction regarding the threat evidence.

4

claims the trial court abused its discretion in admitting such

5

prejudicial evidence.

There was no evidence that Petitioner threatened Tucker or
Trial counsel did not object or ask for a
Petitioner

6

The state appellate court denied the abuse of discretion

7

claim on the ground that, although evidence of third-party threats

8

was inadmissible to prove Petitioner's consciousness of guilt, it

9

was admissible to show Tucker's state of mind, which was relevant

United States District Court
For the Northern District of California

10

to his credibility.

11

discretion claim was waived because defense counsel did not

12

request a limiting instruction and the trial court had no duty to

13

give such an instruction without a request.

14

The state court also held that the abuse of

Citing Dudley v. Duckworth, 854 F.2d 967, 970, 972 (7th Cir.

15

1988) and Estelle v. McGuire, 502 U.S. 62, 75 (1991), Petitioner

16

argues that the unrestricted admission of evidence that unnamed

17

third parties had made threats against Tucker and his family,

18

which allowed the prosecution to argue that Petitioner was

19

"intimidating and terrorizing witnesses including to this day," so

20

infused his trial with unfairness that it denied him due process

21

of law.

22

In Estelle, the Supreme Court stated that due process

23

guarantees "the fundamental elements of fairness in a criminal

24

trial."

25

that violate fundamental fairness is defined very narrowly and,

26

beyond the specific guarantees in the Bill of Rights, the due

27

process clause has limited application.

502 U.S. at 70.

However, the category of infractions

28
23

Id.

1

In Dudley, the court stated that, although the admissibility

2

of evidence is generally a matter of state law, a habeas claim may

3

be stated where "an erroneous evidentiary ruling is of such

4

magnitude that the result is a denial of fundamental fairness."

5

Id. at 970.

6

threats was intended more to prejudice the defendants, including

7

petitioner, than to explain away any nervousness of the witness.”

8

854 F.2d at 972.

9

effect of the testimony is weighed against its necessity, even

In Dudley, the court concluded "that the evidence of

The court continued, "When the prejudicial

United States District Court
For the Northern District of California

10

assuming the witness's nervousness was extreme, . . . we find that

11

the resulting prejudice mandates relief. . . . [W]e find that the

12

trial court's ruling allowing the testimony to stand 'is of such

13

magnitude that the result is a denial of fundamental fairness.'"

14

Id.

15

197 F.3d 1021, 1031 (9th Cir. 1999).

16

500, 515 (9th Cir. 2011), the Ninth Circuit pointed out that, for

17

purposes of habeas relief, Dudley is not federal law as determined

18

by the Supreme Court of the United States.

19

stated that Dudley could be pertinent to habeas review to the

20

extent it persuasively illuminated Supreme Court precedent.

21

In the Ninth Circuit, only if there are no permissible

22

inferences that the jury may draw from the evidence can its

23

admission violate due process.

24

918, 920 (9th Cir. 1991).

25

334 F.3d 862, 887 (9th Cir. 2003), the court held that the

26

admission of evidence that knives were found in the defendant's

27

residence was a due process violation, where the jury could draw

28

no permissible probative inference from it because the murder

Ninth Circuit authority is in accord.

See Henry v. Kernan,

In Hayes v. Ayers, 632 F.3d

However, the court

Id.

Jammal v. Van de Kamp, 926 F.2d

For instance, in Alcala v. Woodford,

24

1

weapon was a knife with a different design, which was sold

2

separately and was not owned by the defendant.

3

As noted, the state appellate court here concluded that the

4

trial court properly admitted the evidence of threats against

5

Tucker to show Tucker's state of mind, which it found relevant to

6

his credibility.

7

The admission of the evidence of threats against Tucker was

8

prejudicial to Petitioner in that the jury was not instructed not

9

to consider it for the impermissible purpose of Petitioner's

People v. Baldwin, No. A107665, slip op. at 33.

United States District Court
For the Northern District of California

10

consciousness of guilt, because there was no evidence that he was

11

responsible for the threats.

12

was likely the jury used the evidence for the improper purpose of

13

consciousness of guilt, rather than for the acceptable purpose of

14

Tucker's credibility.

15

evidence, its admission may have made it unlikely that Petitioner

16

received a fair trial.

17

the evidence to ascertain Tucker's credibility, the Court finds

18

that no due process violation occurred.

19

below, the admission of this evidence without a limiting

20

instruction and the prosecutor's exploitation of it contribute to

21

the finding of ineffective assistance of counsel.

22

Without a limiting instruction, it

Due to the highly prejudicial nature of the

However, because the jury could have used

Nonetheless, as discussed

Petitioner also argues here, as he did in his state habeas

23

petition, that counsel's failure to request a limiting instruction

24

as to Tucker's threats testimony constituted deficient

25

performance.3

26
27
28

In his declaration, defense counsel states that "it

3

Because this claim was raised only in the state habeas
petition, the state appellate court did not address it on
Petitioner's direct appeal. Thus, there is no reasoned state
court opinion addressing this claim.
25

1

would have been appropriate to request that the evidence be

2

limited [to the witness's state of mind], but the overall

3

significance of the failure to limit the use of the evidence is,

4

in my opinion, of little value."

5

argues that counsel's statement shows that his failure to request

6

a limiting instruction was a strategic decision to avoid

7

attracting attention to the evidence.

8

concedes that it would have been appropriate to seek an

9

instruction and indicates that he failed to ask for it, not to

Berry Dec. at ¶ 7.

Respondent

To the contrary, counsel

United States District Court
For the Northern District of California

10

avoid attracting attention to the evidence, but because he thought

11

limiting instructions were of little value or perhaps that the

12

evidence was of limited value to the prosecution.

13

Given the prejudicial effect of threat evidence, and the fact

14

that courts have recognized the value of instructions limiting how

15

threats can be used as evidence, counsel was incorrect.

16

claim supports a finding of ineffective assistance of counsel.

17

This

b. Evidence of the Killing of Randy Hicks

18

In a taped statement that was admitted at trial, Gaines

19

stated that, immediately after the shooting, Hicks told him that

20

Petitioner shot Zachery, that he was standing near Zachery when he

21

was shot, and that he was afraid Petitioner might shoot him, too,

22

because he was a witness.

23

witnesses that Hicks had been killed a few months before

24

Petitioner's trial.

25

by: (1) admitting evidence of Hicks' statement to Gaines because

26

it was double hearsay and prejudicial and (2) allowing evidence

27

that Hicks was killed before the trial because it was unconnected

28

to Petitioner and was prejudicial.

The court allowed testimony from other

Petitioner argues that the trial court erred

26

Petitioner also argues

1

ineffective assistance of counsel in that his attorney failed to

2

offer evidence that Hicks' testimony would have exculpated

3

Petitioner, so there would have been no reason for Petitioner to

4

have had Hicks killed.

5
6

(1) Gaines' Taped Statement
The state appellate court held that Gaines' taped statement

7

to the police was admissible because Gaines had invoked his Fifth

8

Amendment privilege at trial, the prosecutor properly introduced

9

Gaines' preliminary hearing testimony4 and the taped police

United States District Court
For the Northern District of California

10

interview had been admitted at the preliminary hearing as a prior

11

inconsistent statement.

12

In his declaration, Petitioner's trial counsel states:

13

Although I made an in limine motion to exclude the
entirety of Gaines' taped statement on various
grounds, I did not specifically object to the
introduction of the hearsay statements which Gaines
claimed had been made to him by Randy Hicks. It now
seems clear to me that the taped statement could
have been subject to a motion to have them redacted;
I don’t know why I did not request that at the time.

14
15
16
17
18
19

Berry Dec. at ¶ 13.
Respondent argues that any hearsay objection by defense

20

counsel to Gaines quoting Hicks' statement that Petitioner had

21

killed Zachery and that Hicks was in fear for his life would have

22

been overruled by the court because Hicks' statement was

23
24
25
26
27
28

4

California Evidence Code §§ 1291 and 1294 provide that a
witness's preliminary hearing testimony, including a prior
inconsistent statement, is not made inadmissible by the hearsay
rule if the witness is unavailable at trial.
27

1

admissible under the spontaneous declaration exception to the

2

hearsay rule in California Evidence Code § 1240.5

3

Hicks' reported statement was double hearsay and does not

4

appear to qualify as a spontaneous statement.

5

Petitioner had killed Zachery was extremely prejudicial.

6

statement that he was in fear of his life was not probative of

7

anything because it could not be used to prove Petitioner's

8

consciousness of guilt and, because Hicks did not testify, it had

9

no probative value regarding Hicks' credibility.

His statement that
His

Although the

United States District Court
For the Northern District of California

10

state court ruled that evidence of Hicks' murder was relevant to

11

other witnesses' states of mind, because of the extreme prejudice

12

resulting from Hicks' hearsay statement, counsel's failure to

13

object to that portion of Gaines' interview or to request a

14

limiting instruction regarding it, supports a finding of deficient

15

representation.

16
17

(2) Evidence That Hicks Was Killed
Evidence that Hicks had been killed was introduced through

18

the testimony of two witnesses.

19

questions, and over defense counsel's objection of irrelevance,

20

which was overruled, Sergeant Medeiros testified that Hicks was

21

killed on February 4, 2004, in East Oakland, a five minute drive

22

from where Zachery was killed.

23

prosecutor's question, Fred Martin, a friend of Zachery's,

24

testified that he knew that Hicks had been killed.

25
26
27
28

In response to the prosecutor's

RT 739.

5

In response to the

RT 304.

California Evidence Code section 1240 provides that a
statement is not made inadmissible by the hearsay rule if it
purports to narrate, describe or explain an event perceived by the
declarant and was made spontaneously while the declarant was under
the stress of excitement caused by such perception.
28

1

In his closing, the prosecutor stated:

2

And I think there was testimony regarding Bone
[Hicks] is the only one that saw it. And Bone saw
this and Bone knows who killed him. Bone knows the
defendant did this. Bone was killed, shot to death.
You don’t think--you don't think these witnesses
currently here know this? This is admissible for
state of mind of these witnesses.

3
4
5
6
7

RT 1185.
The state appellate court held that the claim that the trial

8

court erred by allowing witnesses to testify that Hicks had been

9

killed was waived because defense counsel failed to object.

In

United States District Court
For the Northern District of California

10

denying the claim of prosecutorial misconduct, the court found

11

that the prosecutor, in his closing argument, specifically stated

12

that the witnesses' awareness that Hicks had been killed was

13

relevant to their state of mind and he did not imply that

14

Petitioner had been involved in the killing of Hicks.

15

Nonetheless, the implication of the prosecutor's statement

16

was that Hicks was killed because he knew that Petitioner killed

17

Zachery and Petitioner must have been involved in causing Hicks'

18

death.

19

from making this inference.

20

jurors' knowledge of Hicks' death makes witnesses more or less

21

credible, or why.

22

attenuated.

23
24
25
26
27
28

A limiting instruction was necessary to prevent the jury
It is not at all clear whether the

Thus the relevance of this evidence is

In his declaration, Berry states:
The prosecutor adduced evidence that Randy "Bone"
Hicks was murdered in February, 2004 -- just months
prior to the trial. In my view, this evidence
possessed limited relevance and its introduction
could have been taken to mean that Baldwin had
something to do with Hicks' murder. The purpose of
the evidence, as I viewed it at the time, was to
demonstrate why Hicks was not a witness. I did not
view it as contrary to the interests of my client.
29

1
2

Berry Dec. at ¶ 10.
Respondent interprets defense counsel's statement to mean

3

that he did not ask for a limiting instruction to avoid drawing

4

further attention to Hicks' fear of reprisal.

5

nothing of the kind.

6

did not object because he did not view the evidence of Hicks'

7

murder to be damaging to Petitioner's defense and he thought

8

evidence of Hicks' death explained his absence as a witness.

9

Hicks' failure to testify had to be explained, counsel could have

Counsel says

As counsel makes plain in his statement, he

If

United States District Court
For the Northern District of California

10

stipulated that Hicks was unavailable.

11

counsel did not appreciate the prejudice caused by the combination

12

of Gaines' unrebutted double hearsay statement that Hicks said

13

Petitioner was the shooter, that Hicks said he was afraid that

14

Petitioner might kill him and the fact that Hicks was killed a few

15

months before Petitioner's trial.

16

instruction to limit the effect of this prejudicial testimony

17

supports the claim of ineffective assistance of counsel.

18

Apparently, defense

Counsel's failure to request an

On a related point, Petitioner argues that defense counsel

19

was deficient for failing to introduce evidence that Hicks had

20

told the police that Zachery's shooter was someone he did not

21

know, and that he knew Petitioner.

22

reason to want Hicks killed.

23

argument.

24
25
26
27

Therefore, Petitioner had no

Respondent does not address this

Petitioner's trial counsel states:
I did not attempt to introduce evidence that the
statements Randy Hicks had given the police were
actually exculpatory of Mr. Baldwin, nor that Hicks
and Baldwin had always been close friends. At the
time, the effort to introduce such evidence would
have appeared peripheral to the issues of the trial.

28
30

1

Berry Dec. at ¶ 14.

2

counter the inference that Petitioner had had Hicks killed

3

supports Petitioner's claim of ineffective assistance of counsel.

4

Counsel's explanation that the issue was peripheral does not

5

amount to a strategic decision.

6

Counsel's failure to present this evidence to

c. "Star Chamber" Statement
Petitioner argues that the prosecutor's statement, in his

8

closing argument, that Petitioner "conducted his own star chamber,

9

including intimidating and terrorizing witnesses including to this

10
United States District Court
For the Northern District of California

7

day," RT 1168, was improper because it amounted to an unsupported

11

representation that Petitioner personally participated in or

12

instigated threats against or intimidation of witnesses.

13

implies that such acts showed consciousness of guilt, an

14

impermissible purpose absent evidence of Petitioner's involvement,

15

rather than an unexplained effect on the credibility of witnesses.

16

Petitioner also contends that counsel should have objected to this

17

comment and requested an instruction explaining the relevance of

18

the evidence of third party threats.

19

correctly stated that the prosecutor's remark "could be construed

20

as suggesting that defendant did personally participate in or

21

authorize threats or intimidation of witnesses, and was

22

objectionable on that basis."

23

slip op. at 37.

24

It

The state appellate court

People v. Baldwin, No. A107665,

However, the court held that the prosecutorial misconduct

25

claim was waived because defense counsel did not object.

26

concluded that counsel's failure to object was not ineffective

27

because the prosecutor's comment "may have been a reference to

28

defendant's statement in the recorded call about some 'snitching'
31

It also

1

and asking the third party to 'handle' it.

2

underscoring the point, it was within the range of reasonable

3

competence to elect instead simply to remind the jury in his own

4

argument that arguments of counsel are not evidence."

5

Respondent argues that the "star chamber" comment was isolated and

6

ambiguous and that counsel's decision not to object to it or to

7

request a limiting instruction was strategic.

8
9

misconduct and ineffective assistance of counsel.

United States District Court
For the Northern District of California

d. Misrepresentation that Thigpin and Fudge Were
Afraid

11

13
14
15
16
17
18
19
20
21
22
23
24
25
26

Id.

Nonetheless, these facts support the claims of prosecutorial

10

12

Rather than risk

Petitioner contends that the prosecutor, in his closing
argument, misstated the evidence relating to the credibility of
defense witnesses Thigpin and Fudge, and defense counsel did not
object.
In his cross-examination of Thigpin and Fudge, the prosecutor
repeatedly suggested that they were testifying for Petitioner out
of fear for their lives.

Both witnesses repeatedly denied this,

RT 967-69 (Fudge) and 995-96, 1005-06 (Thigpin), although they
agreed that someone who identified a murderer could be in danger.
In his closing argument, the prosecutor stated, "Aaron Thigpin
would not have made it home alive, he said, if he saw Wesley
Tucker with the defendant on this day.

Jermaine Fudge would not

have made it home alive, if I [sic] saw someone like the defendant
who did this killing."

RT 1184.

Defense counsel did not object

to these statements.

27
28
32

1

The state appellate court concluded that the prosecutor's

2

statements fell on the side of permissible argument for reasonable

3

inferences from

4

Thigpin's testimony, in response to a hypothetical
question, [] that he personally believed his life
would be in danger if he identified a person
responsible for a murder. . . . The prosecutor's use
of the phrase "he said" logically referred to
Thigpin's admission that he believed he would be
killed if he identified a person responsible for the
murder.

5
6
7
8
9

United States District Court
For the Northern District of California

10

People v. Baldwin, No. A107665, slip op. at 19-20.
Similarly, in regard to Fudge, the court found that the

11

injection of the pronoun "I" was a rhetorical device
the prosecutor used to portray what Fudge might be
thinking. The prosecutor was clearly suggesting to
the jury that it could infer Fudge shared the same
fear that Thigpin acknowledged, and that is why
Fudge testified he saw a person firing shots but
could not identify the shooter, except to say with
certainty that the person was not defendant.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

Id. at 20.

Therefore, the state appellate court held that counsel

was not ineffective for failing to object.
Because the prosecutor had repeatedly tried and failed to get
these witnesses to admit that they were fearful about testifying
against Petitioner, he knew that he was misstating the witnesses'
testimony.

Therefore, his remarks amount to prosecutorial

misconduct.
Explaining his failure to object, defense counsel declares,
"These statements were mere speculation on the part of the
prosecution and I did not object to these misstatements of the
record evidence.

I generally rely on the jury to be critical of

what both sides say about the evidence."

27
28
33

Berry Dec. at ¶ 19.

1

Respondent argues that counsel's statement shows that he made a

2

tactical decision not to object.

3

Because Petitioner's defense rested heavily upon the

4

credibility of these two witnesses and the prosecutor's statements

5

misrepresented what the witnesses said, counsel's decision not to

6

object supports the claim of ineffective assistance of counsel.

7

3. Character Attacks on Defendant and Defense Witnesses

8

a. Taped Conversations with Aldridge
Petitioner argues that the prosecutor was allowed to

10
United States District Court
For the Northern District of California

9

introduce his taped jailhouse conversations with Aldridge which

11

did not pertain to Zachery's murder, but tended to make Petitioner

12

look despicable in the eyes of the jury.

13

objected to the admission of the tapes, Petitioner contends that

14

defense counsel was ineffective for failing to ask for an

15

instruction limiting the jury's consideration of the evidence only

16

for its proper purpose, and to object to the prosecutor's

17

prejudicial use of this evidence.

18

Although defense counsel

The trial court allowed the jury to hear the tape of one

19

entire telephone conversation and portions of the second

20

conversation between Petitioner and Aldridge.

21

consisted primarily of Petitioner insulting and verbally abusing

22

Aldridge, mostly in response to her accusations of his infidelity.

23

Petitioner repeatedly referred to Aldrich as a "bitch," a "stupid-

24

ass woman," a "ho" and a "nigger," and berated her for opening her

25

"motherfucking mouth."

26

pejorative statements in cross-examining Petitioner and Aldridge.

27

The prosecutor himself even referred to Aldridge as a bitch.

28

843.

The conversations

The prosecutor used Petitioner's

RT

Petitioner argues that these portions of the tape caused the
34

1

jury to think that he was revolting and a misogynist and, thus,

2

the type of person who could commit murder.

3

Petitioner contends the prosecutor committed misconduct when

4

cross-examining him about what he meant when he referred to the

5

"low-term 25" in his telephone call from jail to Aldridge.

6

Petitioner testified that he was warning that she could receive

7

the low term of three years for marijuana sales, not a term of

8

twenty-five years to life for murder.

9

"there's no crime in the Penal Code that you get low term of 25."

The prosecutor replied that

United States District Court
For the Northern District of California

10

RT 1108.

11

marijuana charge, the prosecutor stated, "You know the truth of

12

this.

13

and you got credit for time served for anything else.

14

that, don’t you?"

15

objection and told the jury to disregard the prosecutor's

16

comments.

After Petitioner insisted he was referring to a

Don't deceive the jury.

RT 1123-24.

You know low term is two years,
You know

The court sustained the defense

17

The state court denied Petitioner's prosecutorial misconduct

18

claim based on this statement, finding that, although the form of

19

questioning was improper, Petitioner was not prejudiced because

20

the court sustained an objection and told the jury to disregard

21

the improper comments and the prosecutor later introduced evidence

22

that Petitioner had been sentenced to two years for a marijuana

23

sale.

24

The appellate court's conclusion that the questioning was

25

improper but not prejudicial was not unreasonable, but the

26

prosecutor's impropriety is consistent with his misconduct

27

throughout the trial, and contributes to a cumulative finding of

28

prejudice.
35

1

Prior to trial, the court held a hearing on defense counsel's

2

motion, under California Evidence Code section 352, to exclude the

3

taped phone conversations on the ground that their probative value

4

was outweighed by the probability that their admission would

5

create substantial danger of undue prejudice or of confusing the

6

issue.

7

second conversation, and only because they were repetitive.

8

66-69.

9

did not abuse its discretion by admitting the bulk of the taped

RT 1-45.

The court redacted only some statements in the
RT

The state appellate court concluded that the trial court

United States District Court
For the Northern District of California

10

conversations, noting that, throughout the conversations,

11

Petitioner made incriminating statements that were interspersed

12

and intertwined with his argument with Aldridge, so that most of

13

the tape had probative value.

14

Petitioner's words were not likely to shock or inflame the jury

15

because other witnesses used similar language and the trial took

16

place in an urban setting.

17

court had no sua sponte duty to give a limiting instruction, and

18

counsel never requested one.

19

defense counsel's failure to request a limiting instruction

20

constituted ineffective assistance.

21

The court also determined that

The court explained that the trial

The court did not address whether

Trial counsel admits that he should have requested a limiting

22

instruction as to the purpose for which the jury could consider

23

the pejorative statements in the phone conversation, but did not

24

because he thought "that evidence was just a diversion from the

25

real facts of the case."

26

Berry Dec. at 9.

More of the offensive irrelevant language could have been

27

redacted.

28

effect of the prosecutorial misconduct and of the evidence

This evidence contributed to the unfairly prejudicial

36

1

received without limitation to its purpose.

2

failure to ask for a limiting instruction supports the claim of

3

ineffective assistance of counsel.

4

F.3d 769, 776 (9th Cir. 2001) rev'd on other grounds, 538 U.S. 202

5

(2003) (the only way to mitigate harm of drawing propensity

6

inferences from other acts evidence is to give limiting

7

instruction to jury).

8

Defense counsel's

See Garceau v. Woodford, 275

b. Improper Cross-Examination

9

The relevant inquiry on a habeas claim of improper cross

United States District Court
For the Northern District of California

10

examination is that dictated by Darden, 477 U.S. at 181, i.e.,

11

whether the prosecutor's behavior so infected the trial with

12

unfairness as to make the resulting conviction a denial of due

13

process.

14

considering whether the questioning deprived the defendant of a

15

fair trial, the witness' testimony should be viewed as a whole to

16

determine the impact of the improper questioning.

17

Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998).

In

Id. at 934-35.

(1) Mocha Aldridge

18

The prosecutor established that Aldridge was aware in April

19

2003 that Petitioner had been charged with murder, but did not

20

immediately come forward to tell the police or the prosecutor that

21

she was with Petitioner on the day of the murder.

22

that she had given her calendar, in which she kept a record of her

23

daily activities, and a statement, to the defense investigator in

24

2003.

25

I didn't receive any knowledge of this until I got a letter" from

26

defense counsel shortly before the trial began.

27
28

He brought out

The prosecutor then stated, "The record should reflect that

The appellate court held that statements by attorneys are not
evidence and defense counsel should have objected on this ground,
37

1

but did not.

2

did not constitute deficient representation because this issue was

3

not critical but was collateral to the prosecutor's proper line of

4

questioning regarding Aldridge's failure to disclose Petitioner's

5

alibi before the trial.

6

prosecutor's comment was improper and counsel should have

7

objected.

8

misconduct or ineffective assistance of counsel, they contribute

9

to such findings.

The state court was correct that the

While these errors alone do not amount to prosecutorial

10
United States District Court
For the Northern District of California

The court then held that counsel's failure to object

(2) Deborah Baldwin

11

Petitioner asserts that, during the cross-examination of

12

Deborah Baldwin, the prosecutor made testimonial statements in the

13

form of argumentative questions that conveyed his personal belief

14

that she lied to him and intentionally concealed key facts from

15

him.

16

informing the authorities of Petitioner's alibi, the prosecutor

17

stated: "No, No. If my kid were locked up for murder, and he was

18

with me, I'd go to the police officer and say, 'Hey, my kid was

19

with me.

20

915-16.

21

Later the prosecutor stated to Deborah Baldwin, "You lied to me

22

when you said you rented the car."

23

overruled.

24

in his cross-examination of Deborah Baldwin until the court

25

admonished him not to testify.

26

When questioning Deborah Baldwin about her delay in

He couldn't have done it.'

Why didn't you do that?"

RT

The court sustained the defense objection to this remark.

A defense objection was

The prosecutor continued to refer to his own actions

RT 926-27.

The state appellate court acknowledged that the prosecutor

27

became argumentative and made assertions of fact instead of asking

28

questions, but concluded that the prosecutor's conduct did not
38

1

prejudice Petitioner because the court sustained all but one of

2

the defense objections and because the improper statements did not

3

inform the jury of facts that it did not already know.

4

also surmised that the jury would not have construed the

5

prosecutor's comments "as a statement of his personal belief that

6

Baldwin lied . . . [but] would have recognized that he was using

7

cross-examination aggressively to expose the inconsistencies in

8

her testimony, and to impeach her credibility."

9

Baldwin, No. A107665, slip op. at 14.

The court

People v.

The state court was correct

United States District Court
For the Northern District of California

10

that the prosecutor's conduct was improper.

11

alone did not amount to prosecutorial misconduct, they support

12

such a finding.

13
14

While these comments

4. Prosecutor's Closing Argument
If a prosecutor makes statements to the jury during closing

15

argument that he knows are false or has strong reason to doubt,

16

with respect to material facts on which the defendant's defense

17

relied, this is misconduct.

18

1069, 1078 (9th Cir. 2009).

19
20

United States v. Reyes, 577 F.3d

a. "Crack an Alibi" Statement
Petitioner objects to the prosecutor's assertion, in closing

21

argument, that it was not common to "crack an alibi like this,"

22

because there was no evidence regarding how common it was to

23

"crack an alibi."

24

upon the prosecutor's own experience, that this was a strong case

25

for the prosecution.

26

prosecutor's statement did not concern a critical issue; the

27

critical issue was that the prosecutor had presented overwhelming

28

evidence undermining Petitioner's alibi.

The remark amounted to telling the jury, based

The state appellate court concluded that the

39

The state court also

1

concluded that it was not ineffective for defense counsel to fail

2

to object.

3

However, this statement by the prosecutor was improper and,

4

because it was directed at a critical part of the defense case,

5

supports a finding of prejudice.

6

counsel's failure to object supports the claim of ineffective

7

assistance of counsel.

8

For the same reason, defense

b. Rental Car Records

9

Petitioner contends that the prosecutor committed misconduct

United States District Court
For the Northern District of California

10

during his rebuttal closing argument by stating, "You know, this

11

irritates me to no end.

12

Franklin rented.

13

from June 19th.

14

This was the prosecutor's response to defense counsel's closing

15

argument that the prosecutor's evidence failed to establish that

16

Franklin did not have a car rented from Enterprise as of July 1,

17

2001.

18

left by the Enterprise employee's testimony that he had not been

19

asked to check all the records for car rentals by Franklin, the

20

prosecutor assured the jury, from his own knowledge, that the

21

records had been checked for all possible Enterprise rentals to

22

Franklin and that none was rented to her on the day of the

23

homicide.

24

We checked every car that Cecilia

We brought the one from July 2nd, and the one
There was nothing rented in between."

RT 1235.

Petitioner argues that, to overcome the evidentiary gap

The state court assumed this remark constituted prosecutorial

25

misconduct, but concluded that defense counsel did not provide

26

ineffective assistance by failing to object, because an objection

27

would have forced the prosecutor to restate his argument and focus

28

on defense counsel's failure to present records that Franklin did
40

1

have a rental car on the day of the homicide.

2

conclusion that it was improper for the prosecutor to argue facts

3

not in evidence to make up for a gap in his case against

4

Petitioner was correct.

5

supports a finding of deficient performance.

6

this remark in his rebuttal so, by failing to object, defense

7

counsel failed to point out to the jury the correct state of the

8

evidence.

9

fact that Franklin had a rental car to loan to Deborah Baldwin on

The court's

However, counsel's failure to object
The prosecutor made

A crucial element of the defense case rested on the

United States District Court
For the Northern District of California

10

the day of the homicide.

11

in his closing that the prosecutor failed to prove that Franklin

12

did not have a car on that day, his failure to object to the

13

prosecutor's erroneous statement, that he had checked all of

14

Franklin's car rental records, left the jury with the impression

15

that the prosecutor was in possession of evidence that she did not

16

have a car on that day.

Because defense counsel had emphasized

17

c. Misstatement of the Law on Alibi

18

Petitioner contends that the prosecutor, in his closing

19

remarks, improperly asserted that the jurors were required to find

20

Petitioner guilty if they did not believe the alibi witnesses.

21

The prosecutor stated, "If you believe this alibi is a lie, is

22

untrue, you have to find him guilty," RT 1176-77; "If you believe

23

this alibi is false, you must find him guilty, and it is clearly

24

false," RT 1209; "And ladies and gentlemen of the jury, this all

25

boils down to these two witnesses and this false alibi.

26

innocent people don’t come up with these false alibis.

27

is enough--that alone is enough to convict him."

28

Defense counsel did not object to any of these remarks.
41

And
That alone

RT 1250.

1

Petitioner argues that these statements misstated the prosecutor's

2

burden of proving guilt beyond a reasonable doubt.

3

The state court concluded, "There was no reasonable

4

likelihood that the jury would have construed this, and similar

5

remarks throughout the prosecutor's closing, in the manner

6

defendant suggests. . . . Read as a whole, it is obvious that the

7

prosecutor was not purporting to state the law.

8

making a factual argument."

9

not constitute prosecutorial misconduct, the court also found that

Rather, he was

Because the court found that this did

United States District Court
For the Northern District of California

10

counsel was not ineffective for failing to object.

11

The prosecutor's statement was incorrect.

Because he said it

12

three times, it supports a claim of prosecutorial misconduct.

13

Defense counsel's failure to object supports a finding of

14

deficient performance.

15

d. Benefits to Tucker and Gaines

16

Petitioner contends that the prosecutor improperly informed

17

the jury that Tucker and Gaines would not, under Proposition 36,

18

have faced long prison sentences for possession of drugs if they

19

had not cooperated.

20

would be under Proposition 36, or that these witnesses would only

21

do "days or weeks" or "months in jail here and there," but not

22

years.

23

court concluded that,

24
25
26
27
28

There was no evidence of what their sentences

RT 1182, 1195 (closing argument).

The state appellate

assuming arguendo that the description was
inaccurate, it was not incompetent to fail to
object. The prosecutor's argument merely minimized
the degree of penal consequence these witnesses
faced, but it did not undermine defense counsel's
basic point that they both faced incarceration, and
admitted that they gave information concerning the
killing of Terrill Zachery in the hope of gaining
their freedom.
42

1
2

People v. Baldwin, No. A107665, slip op. at 16.
Thus, the state court did not rule on whether the prosecutor

3

committed misconduct.

4

with his misconduct throughout the trial and support a finding of

5

prejudice.

6

deficient performance.

7

The prosecutor's comments were consistent

Counsel's failure to object supports a finding of

Evidence of lenient treatment by the prosecutor in exchange

8

for testimony incriminating a defendant provides strong support

9

for the inference that the witness testified in order to curry

United States District Court
For the Northern District of California

10

favor with law enforcement.6

11

18 (1974) (important for jury to know of witness' vulnerable

12

status as a probationer and possible bias, based on an inference

13

of undue pressure from prosecution); Alford v. United States, 282

14

U.S. 687, 693 (1931) (that witness was in custody of federal

15

authorities could show bias based on promise or expectation of

16

immunity or coercive effect of detention); Burr v. Sullivan, 618

17

F.2d 583, 586 (9th Cir. 1980) (defense must be allowed to cross-

18

examine witnesses about juvenile offenses to show motivation for

19

cooperation with district attorney).

Davis v. Alaska, 415 U.S. 308, 317-

20

Trial counsel states:

21

I am not sure if the prosecutor's arguments regarding the
potential consequences for Tucker and Gaines were accurate.

22
23

6

24
25
26
27
28

In support of his traverse, Petitioner submits information
about the charges against Tucker and Gaines. At the time of the
trial, Tucker was on probation for a drug felony committed in
Alameda County. On September 26, 2003, Tucker had been arrested
in Ohio for a drug felony. On December 4, 2001, a warrant was
issued for Gaines for a drug felony. On February 20, 2002, Gaines
was placed on probation for a period of thirty-six months
following conviction of the drug felony.
43

1
2
3
4

In any event, I did not object to it, nor did I try to
contradict it in my own argument. In my view, it was a
peripheral issue that did not have much to do with the
credibility of those witnesses.
Berry Dec. at ¶¶ 2 to 5.
Given that the prosecutor's case depended on the credibility

5

of Tucker and of Gaines' original statement and given that their

6

potential sentences would have a strong impact on their

7

credibility in the eyes of the jury, the prosecutor's unproven

8

speculation about their potential sentences, and counsel's failure

9

to object to it, support findings of prosecutorial misconduct and

United States District Court
For the Northern District of California

10
11
12

deficient performance.
5. Representations of Facts Not In Evidence
Petitioner argues that, during voir dire, to explain away the

13

primary weakness in his case, the prosecutor improperly stated as

14

a fact that most murder cases have no eyewitnesses.

15

prosecutor's improper suggestions, insinuations and assertions of

16

personal knowledge are apt to carry much weight and may cause such

17

prejudice as to rise to the level of a constitutional violation.

18

United States v. Williams, 504 U.S. 36, 60-61 (1992) (citing

19

Berger v. United States, 295 U.S. 78, 84-85 (1935)).

A

20

The state appellate court found that the prosecutor made this

21

statement as a prelude to inquiring whether the prospective jurors

22

would have difficulty basing a decision on circumstantial evidence

23

in the absence of eyewitness testimony.

24

because this was an appropriate line of inquiry during voir dire,

25

it was not ineffective for defense counsel to fail to object.

26

state court's finding was not unreasonable.

27
28

The court found that,

The

Petitioner also argues that there was no evidence to support
the prosecutor's assertion in his opening statement that unnamed
44

1

witnesses did not want to testify and that, when cases come to

2

court, family members from both sides report back on the street

3

what is happening.

4

that Gaines refused to testify at Petitioner's preliminary hearing

5

because he was told that fifteen to twenty members of Petitioner's

6

family were present in the courtroom, and that Tucker's family had

7

been told to warn him against testifying.

8

court found that there was evidence to support the prosecutor's

9

statement.

The state court noted that there was evidence

Therefore, the state

This finding was not unreasonable.

These facts do not

United States District Court
For the Northern District of California

10

support a finding of prosecutorial misconduct or ineffective

11

assistance of counsel.

12
13

6. Vouching
Petitioner argues four instances when the prosecutor

14

improperly vouched for his witnesses, as follows: (1) in his

15

opening statement, the prosecutor described Sergeant Medeiros as

16

"one of Oakland's finest homicide detectives;" (2) in his closing

17

argument, the prosecutor said, "I met Wesley Tucker in Santa Rita

18

jail on May 10, 2004, and he essentially told me the same thing in

19

the presence of Inspector Pat Johnson;" (3) with respect to deals

20

made by the witnesses, the prosecutor stated, "Everything is open.

21

I have never in any way deceived you;" and (4) the prosecutor

22

stated, "I have tried to bring you all the witnesses that I can."

23

Defense counsel did not object to any of these statements.

24

Improper vouching for the credibility of a witness occurs

25

when the prosecutor places the prestige of the government behind

26

the witness or suggests that information not presented to the jury

27

supports the witness's testimony.

28
45

United States v. Young, 470

1

U.S. 1, 7 n.3, 11-12 (1985); United States v. Parker, 241 F.3d

2

1114, 1119-20 (9th Cir. 2001).

3

The state appellate court found that "none of these comments

4

were reasonably likely to have been understood as vouching, and it

5

therefore was not ineffective for counsel to fail to object."

6

statements about Sergeant Medeiros and Tucker constituted

7

vouching.

8

misconduct and counsel's failure to object to them supports a

9

finding of deficient performance.

United States District Court
For the Northern District of California

10

The

These two statements support the claim of prosecutorial

In sum, viewed as a whole, the prosecutor committed

11

misconduct and defense counsel's performance was deficient.

12

However, these findings will not afford relief unless Petitioner

13

was prejudiced by them.

14

II.

15
16
17
18
19
20
21
22
23
24
25
26
27

The Court now turns to this question.

Prejudice From Prosecutorial Misconduct and Ineffective
Assistance of Counsel
A. Ineffective Assistance of Counsel
To determine prejudice from ineffective assistance of

counsel, the appropriate question is "'whether there is a
reasonable probability that, absent [counsel's] errors, the
factfinder would have had a reasonable doubt respecting guilt.'"
Luna v. Cambra, 306 F.3d 954, 961 (9th Cir.) (quoting Strickland,
466 U.S. at 695), amended by 311 F.3d 928 (9th Cir. 2002).

If the

state's case is weak, there is a greater likelihood that the
result of the trial would have been different, and vice versa.
Luna, 306 F.3d at 966-67.

"'[P]rejudice may result from the

cumulative impact of multiple deficiencies.'"
F.3d 1432, 1438 (9th Cir. 1995).

28
46

Harris v. Wood, 64

1

Because the state appellate court denied Petitioner's

2

ineffective assistance of counsel claims, finding that counsel's

3

performance was not deficient, it did not address the second prong

4

of the Strickland test, whether counsel's deficiencies resulted in

5

prejudice.

6

of the record to determine if the result was contrary to, or an

7

unreasonable application of, Supreme Court authority or an

8

unreasonable determination of the facts in light of the evidence.

9

Therefore, the Court undertakes an independent review

Petitioner argues that this is a close case which amounted to

United States District Court
For the Northern District of California

10

a credibility contest between prosecution witness Tucker and

11

Gaines' original statement on the one hand, and the exculpatory

12

testimony of Thigpen, Fudge and Tapia on the other.

13

counters that the prosecutor's case was strong, with Tucker and

14

Gaines implicating Petitioner as the shooter and corroborating

15

each other, even though they were interviewed by the police on

16

separate occasions and had no significant connection to each

17

other.

18

Respondent

The Court finds that the case was close and, therefore, there

19

was a reasonable probability that, but for the prosecutorial

20

misconduct and counsel's deficient performance by failing to

21

object, seek curative instructions and take action regarding

22

critical aspects of the defense, the result of the trial would

23

have been different.

24

Significantly, there was no physical evidence linking

25

Petitioner to the scene of the crime, no confession and, except

26

for the taped police interview of Gaines in which he relayed

27

hearsay statements from Hicks, no eyewitness identification of

28

Petitioner as the shooter.

Gaines' statement was subject to doubt
47

1

because, at Petitioner's preliminary hearing, he recanted what he

2

told the police, saying that he told the police what they wanted

3

to hear.

4

the preliminary hearing or at the trial, he was never cross-

5

examined by defense counsel.

6

Furthermore, because Gaines never testified, either at

Tucker, the most important prosecution witness, had something

7

to gain by testifying because he had a pending probation

8

violation.

9

Tucker was only facing weeks or months in jail, rather than years,

The fact that the prosecutor improperly suggested

United States District Court
For the Northern District of California

10

minimized to the jury Tucker's incentive to testify for the

11

prosecution.

12

Respondent's primary argument, that the prosecutor had a

13

strong case because Tucker and Gaines' original statement

14

corroborated each other, is undermined by the fact that Gaines

15

recanted by testifying at Petitioner's preliminary hearing that,

16

in his taped statement to the police, he only told them what they

17

wanted to hear.

18

In addition to the testimony of Tucker and Gaines' statement,

19

the prosecutor presented evidence of the two telephone

20

conversations between Petitioner and Aldridge and the cell phone

21

calls to Aldridge's home telephone number from Tucker's phone on

22

the night of the murder.

23

taped telephone conversations depended largely on the prosecutor's

24

theory that Petitioner, who was arrested for possession of

25

marijuana and a parole violation, could not have known that he was

26

being investigated for a homicide, and thus would not have

27

repeatedly mentioned the homicide squad to Aldridge unless he had

28

committed the murder.

The incriminating interpretation of the

However, Officer Midyett, a police officer
48

1

who had been prominent in the search and arrest of Petitioner on

2

the marijuana and parole violation charges, was known in the

3

community for his work as a homicide officer.

4

testimony); 1034 (Petitioner's testimony).

5

commented that he thought of Officer Midyett as a homicide

6

officer.

7

Furthermore, the importance of the tapes turned on the

8

prosecutor's interpretation of ambiguous and cryptic words and

9

phrases such as "bizat," "low term 25" and "handle this shit."

RT 845 (Aldridge's

The trial judge also

RT 32 (motion to suppress tape of jail telephone calls).

United States District Court
For the Northern District of California

10

The fact that a large sign over the jail telephone informed

11

inmates that their conversations were being recorded, RT 695, made

12

it unlikely that Petitioner would discuss inculpatory information

13

about a murder he had committed over the telephone.

14

Furthermore, the cell phone records that showed that two

15

short calls were made from Tucker's cell phone to Aldridge's home

16

on the night of the murder did not indicate who made the calls and

17

who received them.

18

Petitioner, who lived at Aldridge's home.

19

Petitioner allegedly made a call to Aldridge on Tucker's cell

20

phone, the woman who Tucker said brought Petitioner his gun was

21

another girlfriend, not Aldridge.

22

Tucker could have placed the calls to
Furthermore, after

On the defense side, although Thigpen and Fudge were

23

Petitioner's friends, Tapia was a neutral witness.

24

prosecutor's effort to impeach Thigpen and Fudge by showing that

25

they were testifying because they were afraid of Petitioner was

26

unsuccessful.

27

Fudge and Tapia, corroborated each other because they both

28

described him as thinner and shorter than Petitioner.

The

The separate descriptions of the actual killer, by

49

These

1

descriptions of the perpetrator are consistent with the security

2

guard's description of the man found in possession of the murder

3

weapon as tall and lanky; Petitioner weighed 230 pounds.

4

strong exculpatory evidence.

5

This is

Petitioner presented an alibi with corroborating witnesses.

6

The prosecutor's attempt to show that Petitioner's alibi was

7

untrue based upon rental car records was incomplete.

8
9

The substance of trial counsel's deficient performance was
directly relevant to the areas of weakness of the prosecutor's

United States District Court
For the Northern District of California

10

case.

11

counsel's failure to object to the prosecutor's closing argument

12

that appealed to the jury's passion and prejudice regarding crime

13

in Oakland, that Petitioner was running a "star chamber" by

14

threatening and intimidating witnesses, that implicated Petitioner

15

in the killing of Randy Hicks, that the jury must convict

16

Petitioner if it disbelieved his alibi defense, and that misstated

17

the evidence regarding the rental car records, the possible

18

sentences faced by prosecution witnesses Tucker and Gaines and the

19

testimony of Thigpen and Fudge.

20

The most egregious aspect of deficient performance was

Given the closeness of the case and the cumulative impact of

21

the multiple errors by counsel, see Harris, 64 F.3d at 1438, there

22

is a reasonable probability that, absent counsel's deficient

23

performance, at least one member of the jury would have had a

24

reasonable doubt respecting Petitioner's guilt and he would not

25

have been convicted.

26

of ineffective assistance of counsel.

Thus, Petitioner has established his claim

27
28
50

1

B. Prejudice From Prosecutorial Misconduct

2

The state appellate court held that many of Petitioner's

3

prosecutorial misconduct claims were procedurally defaulted.

4

Although the court addressed these claims, it did so in the

5

context of ruling on Petitioner's ineffective assistance of

6

counsel claims.

7

misconduct if the petitioner can show cause for the default and

8

actual prejudice as a result of the alleged violation of federal

9

law.

A habeas court may review claims of prosecutorial

Vansickel, 166 F.3d at 958.

Because Petitioner's counsel

United States District Court
For the Northern District of California

10

was ineffective, he has shown cause for the procedural default of

11

his claims of prosecutorial misconduct.

12

488; Vansickel, 166 F.3d at 958.

13

prosecutorial misconduct, a petitioner must show that the

14

misconduct had a substantial and injurious effect or influence in

15

determining the jury's verdict,

16

that the trial was infected with unfairness, Darden, 477 U.S. at

17

181.

18

See Murray, 477 U.S. at

To show prejudice as a result of

Brecht, 507 U.S. at 637-38, and

As discussed above, the case against Petitioner was close.

19

The ongoing pattern of prosecutorial misconduct related to

20

critical parts of the case.

21

these inflammatory comments during his closing argument and

22

rebuttal magnified their prejudicial effect because they were

23

fresh in the mind of the jurors.

24

case and the prejudicial effect of the prosecutor's misconduct,

25

the Court concludes that the misconduct had a substantial and

26

injurious effect on the jury's verdict and that the trial was

27

infected with unfairness.

28

found that the prosecutor's misconduct was not prejudicial, the

That the prosecutor made many of

Because of the closeness of the

To the extent that the state court

51

1

ruling was based on an unreasonable determination of the facts in

2

light of the evidence presented in the state court proceeding.

3

Therefore, Petitioner has established his claim of prosecutorial

4

misconduct.

5

III. Failure to Investigate Jury Tampering

6

Petitioner argues that his rights to an impartial jury and

7

due process were violated because, after learning of possible jury

8

misconduct, the trial court failed to make an adequate inquiry.

9

This claim arises from an out-of-court conversation Juror

United States District Court
For the Northern District of California

10

Number 8 had with the victim's mother.

11

break in the trial, the victim's mother said to Juror Number 8,

12

"He killed my son, he was my son."

13

sorry."

14

four."

15

position to hear the exchange.

16

In the hallway, during a

Juror Number 8 replied, "I'm

The mother then said, "He was twenty-five, no twentyAn alternate juror was also in the hallway and in a

The trial court held a hearing with the parties and Juror

17

Number 8.

18

would affect her decision as a juror and she responded, "[T]here

19

was nothing discussed about that . . . [N]o I don’t have a problem

20

with that, because no detail was discussed or anything like that."

21

Defense counsel did not request that Juror Number 8 be replaced

22

with an alternate, but he did move for a mistrial, which the court

23

denied.

24

about what he had overheard because "the content of the

25

communication was relatively innocuous."

26

request that the alternate juror be questioned and did not move

27

that the alternate be replaced.

The court asked the juror whether the conversation

The court decided not to question the alternate juror

28
52

Defense counsel did not

1

The Sixth Amendment guarantees to the criminally accused a

2

fair trial by a panel of impartial jurors.

3

Irvin v. Dowd, 366 U.S. 717, 722 (1961).

4

is unduly biased or prejudiced, the defendant is denied his

5

constitutional right to an impartial jury."

6

F.2d 520, 523-24 (9th Cir. 1990).

7

possibly prejudicial, between jurors and third persons, or

8

witnesses, or the officer in charge, are absolutely forbidden, and

9

invalidate the verdict, at least unless their harmlessness is made

U.S. Const. amend. VI;

"Even if only one juror

Tinsley v. Borg, 895

"[P]rivate communications,

United States District Court
For the Northern District of California

10

to appear."

11

Mattox establishes the presumption that an unauthorized

12

communication with a juror is prejudicial.

13

California Men's Colony, 365 F.3d 691, 697 (9th Cir. 2004).

14

Mattox’s "presumption is not conclusive, but the burden rests

15

heavily on the Government to establish . . . that such contact

16

with the juror was harmless to the defendant."

17

States, 347 U.S. 227, 229 (1954).

18

with a juror is de minimis, the defendant must show that the

19

communication could have influenced the verdict before the burden

20

of proof shifts to the prosecution."

21

Mattox v. United States, 146 U.S. 140, 142 (1892).

Caliendo v. Warden of

Remmer v. United

"[I]f an unauthorized contact

Caliendo, 365 F.3d at 696.

In determining whether an unauthorized communication raised a

22

risk of tainting the verdict, courts should consider factors such

23

as whether the unauthorized communication concerned the case, the

24

length and nature of the contact, the identity and role at trial

25

of the parties involved, evidence of actual impact on the juror,

26

and the possibility of eliminating prejudice through a limiting

27

instruction.

28

unauthorized conversation with multiple jurors for twenty minutes

Id. at 697-98 (critical prosecution witness’s

53

1

was possibly prejudicial under Mattox, even if conversation did

2

not concern the trial).

3

Petitioner argues that the improper communication in this
case was not de minimis, the trial court's hearing was extremely

5

brief and the court never asked Juror Number 8 "whether she

6

perceived the conversation as containing an implicit threat or

7

plea to decide the case based upon sympathy" for the victim and

8

the victim's mother.

9

erred by not undertaking any investigation of the impact of the

10
United States District Court
For the Northern District of California

4

conversation on the alternate juror and, thus, in regard to the

11

alternate juror, the presumption of prejudice is unrebutted.

Petitioner also argues that the trial court

12

The state appellate court denied this claim, determining

13

that the presumption of prejudice was dispelled
with respect to Juror No. 8 because she did not
describe or perceive the conversation as containing
any implicit threat, or plea to decide the case
based upon sympathy. Nor did she interpret the
comment 'he killed my son' as an assertion that the
victim's mother had information not presented to
the jury that established defendant's guilt. She
unequivocally stated her understanding that the
conversation did not relate to her decision in the
case, and expressed certainty that the conversation
would not affect her ability to be impartial.

14
15
16
17
18
19
20
21

People v. Baldwin, No. A107665, slip op. at 42.
The state appellate court also found that the presumption of

22

prejudice regarding the alternate juror was rebutted based upon

23

California law.

24

the victim's mother, judged objectively, did not convey the type

25

of information that was inherently and substantially likely to

26

have influenced the jurors.

27

no substantial likelihood that actual bias arose.

The court determined that the comments made by

The court determined that there was

28
54

1

The appellate court's determination was not unreasonable.

2

Not only was the content of the mother's remark non-prejudicial,

3

but the contact was brief and the trial court's inquiry of Juror

4

Number 8 was sufficient to dispel any presumption of prejudice.

5

Because the alternate juror was only a bystander, he would likely

6

be less influenced by the remarks than Juror Number 8, to whom the

7

remarks were directed.

8

not contrary to or an unreasonable application of established

9

federal law or an unreasonable determination of the facts in light

United States District Court
For the Northern District of California

10

The state court's denial of this claim was

of the record evidence.

11

CONCLUSION

12

Based on the above, the Court’s confidence in the outcome of

13

Petitioner’s trial is undermined by the ineffective assistance of

14

counsel and prosecutorial misconduct.

15

petition for writ of habeas corpus is granted and his motion for

16

an evidentiary hearing is denied as moot.

17

is vacated and Respondent is ordered to release him from custody

18

within sixty (60) days of the date of this order unless the State

19

of California reinstitutes criminal proceedings against him.

20

Respondent appeals this decision, Petitioner's release or retrial

21

shall be stayed pending appeal.

Therefore, Petitioner's

Petitioner’s conviction

If

22
23

IT IS SO ORDERED.

24
25
26

Dated: 8/29/2012
CLAUDIA WILKEN
United States District Judge

27
28
55